HKSAR v. ZHENG ZHI LONG

DCCC 971/2017

[2021] HKDC 1302

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 971 OF 2017

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Reasons for Determination re: Application
for Confiscation Order by DOJ under s.8
of the Organized and Serious Crimes
Ordinance, Cap 455

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Introduction

1.  The chronological order of events was as follows:-

29.5.2018:	The defendant was convicted of one count of “Dealing with property known or believed to represent proceeds of an indictable offence involving 5 million USD.  Immediately after the conviction, Prosecution applied for confiscation order under s.8 of the same Ordinance pending for the sentence.
4.6.2018:	Defendant was sentenced to 5 years and 3 months’ imprisonment.  A mention date was fixed to 16 July 2018 for hearing of application for confiscation order.
20.6.2018:	Defendant lodged the appeal against conviction and sentence.
13.7.2018:	The mention date of 16 July 2018 was adjourned until the conclusion of the appeal proceedings by the defence.
16.1.2020:	The Application for leave to appeal against conviction and sentence was dismissed.
7.1.2021:	The defendant renewed his application before full bench of the CA.  Defendant formally abandoned his appeal.  The appeal was finally concluded.
30.7.2021:	Department of Justice applied for a mention date for resumption of application for confiscation order proceedings.
25.8.2021:	First hearing for confiscation order with the s.10 statement filed to the court and served on the defendant.
12.9.2021:	Letter by the defendant in reply to s.10 statement and objecting the resumption of the said proceedings.
27.9.2021:	Defendant confirmed to proceed with his case in person. Hearing the application for resumption of the said proceedings and the objection by the defendant.
6.10.2021:	Ruling by the court to allow the resumption of the said proceedings. Hearing the application by DOJ and the reply by the defendant.

Reasons for granting Prosecution to resume the proceedings

Grounds of objection by defence

2.  The defendant submitted in his letter dated 12 September 2021 that under S 8(4)  of the said Ordinance.  The court should then determine –  “where subsection (1)(a)(i)  is applicable …. In the same proceedings or which the court proposes to take or has taken into consideration in determining his sentence” .

3.  The defendant further submitted that as he would finish serving his sentence in November this year, it was unfair to him for the Department of Justice to make the application at such a late stage.

4.  I have considered the grounds of objection by the defence and the reply and submission by the DOJ.  I have further considered the statutory requirements under the Organized and Serious Crimes Ordinance Cap 455 and the relevant authorities.

5.  In brief, DOJ made such an application for confiscation order after the conviction and before the sentence.  However, the said application was adjourned due to the lodging of appeal against the conviction and sentence by the defendant. The said appeal was finally concluded on 7 January 2021.

6.  In addition, there is a civil claim in progress against the subject bank account of the defendant by the victim. DOJ needs time to clarify the progress of such claim.

7.  Having considered the grounds raised by the defence and the relevant factors surrounding this case, I rule that there is neither material delay nor any prejudice on the defendant.

8.  I accordingly allow the resumption of confiscation order proceedings made by the DOJ.

Application by the Department of Justice

9.  DOJ submitted that since the defendant was convicted of the specified offence involving 5 million USD, the defendant had benefited from the specified offence with the value of the benefit being 5 million USD.

Realizable property

10.  Under s.12(1)  of the said Ordinance, realizable property means:-

(a)  any property held by the defendant.

11.  DOJ submitted that it included all the property held by the defendant locally in Hong Kong and overseas.

12.  DOJ further made it clear that as there had already been a civil claim by the victim against the local bank account held by the defendant, DOJ asked the court not to consider the local property held by the defendant.

13.  In this application, DOJ only sought the court to consider the overseas asset held by the defendant.

Overseas asset held by the defendant

14.  DOJ relied on the information disclosed in the 1^st Affirmation made by the defendant dated 14 February 2018.

15.  DOJ asked the court to consider the following 3 sources of the defendant’s overseas asset:-

(1)  overseas bank accounts with a total sum of $40,200.82 AUSD and $1,594.32 SGD which was equivalent approximately to $232,365.00 HKD;

(2)  defendant being a registered owner of a property in Fujian Province China valuing around $800,000 to 1,200,000 RMB as estimated by the defendant;

(3)  the defendant’s securities with the estimated value being about $36,053.32 AUSD.

16.  However, after the clarification made by the defendant in court, DOJ took the view that the value of securities might be double counted as it was already included in the overseas bank accounts.

Defendant’s reply

17.  Defendant elected not to give evidence.  He only relied on the reply made in his letter dated 12 September 2021, together with his verbal submission in the court.

18.  He explained that for most of the overseas bank accounts, as they had been inactive for few years, after deduction of the handling fee by the banks, the balance would now be little.

19.  Also, in the securities account, there were two updated transfer withdrawal transactions in the total amount of $20,000 AUSD. However, no such transaction record or slip was produced.

20.  In respect of the property in China, he explained that it was probably registered in his name by his parents in 1990’s, it was to be bequeathed to him after the death of his parents.  The property was always remained in the control and enjoyment of his parents.  He regarded that it actually belonged to his parents during their life time.  Therefore, it should not be counted as his property.

Determination by court

21.  I have carefully considered the application by the DOJ and also the reply and submission made by the defendant.

22.  I have also considered the relevant authorities cited by the DOJ.

23.  I found that the defendant did benefit from the specified offence.

24.  I further found that the value of the benefit was 5 million USD.

25.  I have considered the definition of realizable property under s.12(1)  of the said Ordinance, I rule that it includes all the assets held by the defendant both within and outside Hong Kong.

26.  In the present application by the DOJ, it was sought to consider the overseas asset held by the defendant.  Therefore, the court only focus on the overseas asset of the defendant.

27.  Concerning the third source of overseas asset, namely the securities as disclosed by the defendant in para 19 of the 1^st Affirmation dated 14 February 2018.  The defendant raised that those securities were kept under the Equities Cash Investment Account, which was the item xxiii of the table under paragraph 12 of the 1^st Affirmation.

28.  DOJ after considering these two items bearing a similar figure, it might be double-counted.

29.  Having considered that, I found the possibility of double counting could not be ruled out.  To the benefit of the defendant, I decided not to count the third source, namely the securities held by the defendant.

30.  Under such circumstance, the court would only consider the first and second source of assets, namely the overseas bank accounts and the property in China.

Overseas Bank Accounts

31.  Firstly, I found that they were properties held by the defendant.

Amount to be assessed

32.  Defendant claimed that there were two transfer withdrawals in the Investment Account (item xxiii)  in the total amount of 20,000 AUSD.  However, the defendant was unable to produce any record, or proof to show such transfers. 

33.  Having considered that, I found the defendant failed to prove on balance of properties that there were actually these two transactions.  I did not accept the mere claim by the defendant in the submission.

34.  Defendant further submitted that most of the accounts had been inactive for a long time, a high handling fee would be charged.  Therefore, the current balance would be much lower as mentioned in the Table of the 1^st Affirmation.

35.  Having considered a long lapse of time for 3 years and 8 months, I found it reasonable for deduction of handling fee for inactive accounts.

36.  Having considered all the circumstances, I adopted a discount of 40% to represent the deduction of handling fee for inactive accounts.

37.  The total amount as calculated before was $232,365.00 HKD.  After the said discount, the amount was $139,419.00 HKD.

38.  I found this was the sum recoverable under the heading of overseas bank accounts.

Real property in China

39.  I have considered the explanation given by the defendant.  Again, this was only made by way of a written reply and submission in court, this was not testimony under oath.

40.  Further, there was no other documentary proof to support defendant’s version.

41.  Having considered all the circumstances, I found the property in China being the property held by the defendant.

Value of the property

42.  The defendant in para 19 after 1^st Affirmation stated that it valued around $800,000.00 RMB to $1.2 million RMB.

43.  These figures were estimated by the defendant in 2018.  The DOJ was unable to assist the court as to the current value of the said property.

44.  Having considered all the circumstances, I adopted the lowest end as estimated by the defendant and fixed the value at $800,000.00 RMB. With the current rate for $1 RMB being $1.2 HKD, the value was $960,000.00 HKD.

45.  I found the sum recoverable under the heading of real property being $960,000.00 HKD.

Conclusion

46.  The total sum recoverable from the defendant was:-

$1,099,419.00 HKD

(960,000.00 + 139,419.00)

47.  Having considered all the circumstances of the case, I am satisfied that all the conditions as laid down in s. 8 of the Organized and Serious Crimes Ordinance Cap 455 for a confiscation order have been fulfilled.  I accordingly make a confiscation order against the defendant.

48.  I further ordered the defendant to pay the amount of $1,099,419.00 HKD to HKSAR Government.

Order under s. 13 of the said Ordinance

49.  DOJ informed the court that the earliest date of release of the defendant was 24.11.2021. In addition, defendant was an Australian passport holder with no local tie in Hong Kong. After serving the sentence, there was a chance for him to leave Hong Kong.

50.  I have considered the background of the defendant and the relatively small amount comparing with that he has benefited, I now make an order that the defendant shall pay the government $1,099,419 HKD within 1 month and in default, he shall serve a term of 2 years and 24 days’ imprisonment, all to be consecutive with his current serving sentence.